In the opinion, authored by Chief Justice John Roberts, the five justice majority noted that the prospect of triggering additional funding to an opponent could pressure privately financed candidates or independent groups to limit their spending. The Court concluded this was a substantial burden on political speech, and a violation of the First Amendment.

Reactions to the ruling are mixed, and its implications are still being teased out. While the opinion was careful to point out that public financing of election isn’t automatically unconstitutional, it’s clear that this Supreme Court remains extremely skeptical of election reforms that seek to limit the influence of campaign donations on politics, and is likely to strike down any measure that creates a disincentive for a candidate to raise and spend money.

Public financing of judicial elections is certainly a step in the right direction; it allows judicial candidates to campaign free of the pressure to raise campaign funds, and helps fight the public perception that donations could influence judicial decisions. Unfortunately, this ruling undercuts the usefulness of public financing systems. Without a mechanism for matching the expenditures of their opponents, publicly financed candidates face the prospect of simply being outspent, and not being able to compete in elections that are growing ever more expensive and contentious.

Merit Selection solves this problem, by eliminating the need for campaign fundraising, and allowing judges to reach the bench based on their qualifications, their skill, ability and knowledge of the law. That’s the system we support for appellate judges in Pennsylvania, and we hope the voters of Pennsylvania will join us in calling for change.

On its face, this seems likes a logical argument. Voters line up on election day, and choose the person they want to be their judge. But is the election process really as open or transparent as Bonneau claims?

In Pennsylvania, partisan elections mean a primary vote, to decide which candidate will represent each party in the general election. It’s relatively rare for a judicial candidate at any level to win a primary election without the endorsement of a political party. The party endorsement conveys an automatic advantage, both in terms of fundraising and political capital.

The thing is, political parties aren’t required to disclose anything about how or why they choose the candidates they endorse. As we pointed out at the beginning of this year’s judicial primary race, these huge swaths of the partisan, political election system are completely opaque to voters. The public gets little, if any insight into the process. The only safe assumption is that the stated goals of the candidate (who’s running for a position that requires impartiality and independence) match up with the political positions of the party. The other thing that the process reveals about a judicial candidate who’s endorsed by a party is that the party believes the candidate has the campaign savvy and fundraising prowess necessary to get elected.

In this year’s Democratic primary for a seat on the Superior Court, Common Pleas Judge David Wecht ran unopposed. Voters didn’t even have the option of choosing an unendorsed candidate. We’ll never know if other qualified candidates were dissuaded from running simply because Judge Wecht received the endorsement.

By contrast, the Merit Selection proposal that we support, to reform selection of appellate judges in Pennsylvania, would include measures specifically designed to make it as transparent as possible. The process for choosing appellate judges would be written into state law, including publication of the qualifications of candidates for each seat on the bench, and opportunities for public input before the Nominating Commission makes its recommendations to the Governor. In addition, we support a Nominating Commission that would include representatives from public, community, labor and business groups, who would be able to take the perspective of their members into account when making their recommendations.

Under Merit Selection, judicial candidates reach the bench based on a careful examination of their qualifications, experience and knowledge of the law. By contrast, elected judges often can’t even make it onto the ballot without satisfying the opaque interests of a political committee. So why are judicial elections touted as an unassailable model of transparency and openness?

What solution does the paper propose to end the political gridlock? Urging Virginia to dial down the politics in its judicial selection system, by switching to Merit Selection.

Virginia and South Carolina are the only two states in which legislators choose judges. More flawed methods exist, particularly in states where judges raise money and air negative ads in partisan elections.

But Virginia’s lawmakers seem determined to prove they are no longer capable of handling this important task.

Thirty-four states employ some form of merit selection, in which nominating commissions screen would-be jurists. In most cases, the governor makes the final decision.

The merits of the candidates for the Virginia Supreme Court are not in question in this instance. All of them hold impressive credentials. But the merits of those legislators who want this important responsibility, yet somehow can’t manage to handle it, are increasingly under a cloud. It’s time to consider a change.

Kolberg, who has served as magistrate at the court for 19 years and as an acting judge since 2002, was recommended over Rettich by the Montgomery County Republican Party Screening Committee in January.

But on April 14, the precinct captains in the court’s jurisdiction voted 23-4 to endorse Rettich.

Former Miami Twp. Trustee Dave Coffey, who is helping Kolberg’s campaign, said the April meeting was an “ambush.” Instead of focusing on judicial qualifications, Rettich supporters questioned Kolberg’s legitimacy as a Republican, Coffey said.

In addition to the political infighting, there are allegations that a Rettich supporter tried to get the retiring judge to convince Kolberg to withdraw, by threatening the jobs of current court employees.

Messham told the Dayton Daily News that Miami Twp. Trustee Deborah Preston told him April 16 that if Kolberg did not withdraw from the race, Rettich would fire all current court employees once he is elected.

Preston also told Messham that, if he brokered the deal to get Kolberg out of the race, he would be allowed to serve as a visiting judge at the Miamisburg court after he retires, Messham said.

Messharm said Preston never mentioned Rettich’s name, but said, “Bob, I’m only the messenger.”

Why is the endorsement of the County Republican Party causing such a scrap? Because of cold political reality; without a party endorsement, most judicial candidates in partisan races have a vanishingly small chance of reaching the bench. Endorsed candidates have a huge advantage in a party primary. If a candidate who fails to win a primary even has the option to run as an independent, he or she will be facing opponents who have the benefit of their parties’ assistance with campaigning and raising funds.

In a partisan judicial election, the endorsement of a party is invaluable. Party politics become more important than the experience and ability of the candidates. Qualified judges can reach the bench only if they’re also sufficiently skilled politicians. They must navigate the often contentious currents of party endorsements, and the often confusing ethical rules that try to balance the need for political campaigning against their impartiality on issues they might rule on once they’re elected.

We believe that Pennsylvanians deserve a system that gets appellate judges out of the business of raising funds and campaigning for votes. We think that skilled judges should be able to reach the Pennsylvania appellate bench on the strength of their experience, their ability, and their knowledge of the law, not their skill at winning political points. That’s why we support the switch to Merit Selection of appellate judges in Pennsylvania.

The PBA is studying the possibility of recommending a Constitutional Convention, which would rewrite the Commonwealth’s founding document. The Constitutional Review Commission has been accepting testimony about what parts of the constitution should should be modified if a convention is called. Marks told the committee that PMC doesn’t have a position on whether or not a convention should occur. If a convention is called, however, PMC believes it should include changing the selection of appellate judges from partisan elections to a Merit Selection system.

Marks’ testimony was reported in the Wilkes-Barre Times Leader:

[T]he current, partisan process of electing appellate court judges is fraught with problems that have undermined the public’s confidence in the judiciary.

Among the most pressing concerns involves the huge amount of money statewide judicial candidates must raise to fund their campaigns – money that primarily comes from attorneys and special interest groups that have led the public to believe that “justice is for sale.”

“When judges preside over cases involving lawyers or parties that contributed financially to their campaign . . .. the public cannot help but be concerned that a judge’s impartiality might be affected,” [Marks] said.

The judicial system in Pennsylvania is organized by Article V of the state constitution. In addition to changing the selection system for appellate judges, Marks recommended changes that would improve the judicial discipline system, and ensure adequate funding for the courts. A .pdf copy of Marks’ testimony is available from the Commission’s website. Video of the hearing will air on PCN at 5 pm on Saturday, April 30th.

How do judges raise money to run for office without creating at least the appearance — if not the reality — that somebody’s buying a favorable judicial ruling down the line?

It’s a problem that’s getting worse, as big money has started pouring into Illinois judicial races. Last fall, more than $3 million was funneled into the retention campaign of Illinois Supreme Court Chief Justice Thomas L. Kilbride — the most in state history for a retention race.

As judicial campaign spending continues to increase, mandatory recusal rules are an increasingly important tool. They help mitigate the appearance that impartial jurists might be influenced by campaign donations. They also prevent judges who might be tempted to show favoritism from ruling on cases involving donors. But we think a better solution would be to relieve appellate judges of the need to raise campaign funds in the first place.

Under Merit Selection, there is less potential for influence, real or perceived, because judges can reach the bench without needing campaign donations. Appellate judges are evaluated based on their knowledge, experience and skill, instead of their ability to amass campaign funding. And when they go before the voters in retention elections, they’re not running against a political opponent. They’re running on their service on the bench, a record that the public can look to when deciding if they deserve to be retained.

Potential conflicts of interest aren’t completely eliminated, of course, but one important source is taken out of the equation. Judges can rule without the specter of campaign donor influence hanging over their decisions, and the public can be more confident in the fairness and impartiality of the courts. That’s one important reason why we support the switch to Merit Selection for Pennsylvania’s appellate judges.

Justice Anthony M. Kennedy, who definitely seems to hold the deciding vote on the newest test of the Supreme Court’s skepticism about campaign finance laws, made repeated comments on Monday suggesting that he is very wary of Arizona’s attempt to offset the impact of wealthy candidates paying their own way. Among a variety that could be noted, no remark was more telling than what seemed almost to be a rhetorical question: “Do you think it would be a fair characterization of this law to say that its purpose and its effect are to produce less speech in political campaigns?”

A ruling against Arizona would invalidate the “trigger provision” portion of the act, which allows for an increase in funding for publicly financed candidates who are outspent by privately financed opponents. The argument is that candidates raising their own money are pressured to limit their spending, in order to avoid triggering an injection of public money into an opponent’s coffers. Justice Kennedy seems sympathetic to the claim that this pressure is so strong that it actually infringes on the First Amendment Free Speech rights of candidates raising private funds.

There has been plenty of speculation about how the case will fair before the Supreme Court. You can sample a selection below.

Justice at Stake Campaign: Supreme Court Case Threatens Public Finance Laws

NY Times: Arizona’s Boon to Free Speech

L.A. Times: Arizona election law heads to Supreme Court

Christian Science Monitor: Supreme Court to decide Arizona’s unique campaign financing law

NPR (Morning Edition): High Court Takes Another Stab At Campaign Finance

The Huffington Post: Will the Supreme Court Prevent Citizens United From Being Fixed?

Center for Responsive Politics: Arizona Public Financing Law Faces Major Supreme Court Test

The challenged part of the law allows a publicly financed candidate, facing an opponent spending private funds, to receive an extra infusion of public money if their opponent’s spending goes over a certain amount. This “trigger provision” ensures that publicly financed candidates won’t be at a disadvantage, limited to a certain level of spending, while their privately financed opponents are free to spend as much cash as they can raise.

At issue is whether or not the provisions represent a limitation on the rights of candidates who choose not to accept public financing. According to our partners at the Justice at Stake Campaign:

[a] federal judge declared the Arizona provision unconstitutional, saying it violated the First Amendment because it caused candidates without public funding to limit their campaigning, fundraising and spending of campaign money. The Ninth U.S. Circuit Court of Appeals disagreed, saying the provision imposed “only a minimal burden on FirstAmendment rights,” that there was no evidence of it chilling free speech rights, and that it was needed to fight a perception of corruption.

Four states – North Carolina, New Mexico, Wisconsin and West Virginia – have turned to public financing plans, to help alleviate the need for campaign fundraising by appellate judge candidates. A ruling against the Citizens Clean Elections Act would likely invalidate similar trigger provisions contained in all four of those plans. Candidates who opt into public financing in future judicial elections will be forced to limit their spending, while candidates who choose to raise their own funds will be free to spend as much as they can amass. How many aspiring appellate judges will choose public financing, knowing that they won’t be able to respond if their opponents outspend them?

While we respect any attempt to mitigate the influence of campaign spending on the outcome of judicial elections, we think that a better solution is to completely eliminate campaign financing as part of the process. Let appellate judges reach the bench based on their experience, skills and qualifications, not on the back of a huge campaign war chest. That’s why we support Merit Selection for appellate judges in Pennsylvania.

Making the transition to Merit Selection requires amending the state constitution. An amendment bill would need to pass in two consecutive sessions of the General Assembly, and then receive a majority vote in a public referendum.

This year’s contest, which sees self-described conservative Justice David Prosser up for re-election, is expected to be just as contentious. Wisconsin’s labor unions are making plans to oust Justice Prosser, as part of a planned push back against the recent passage of a bill stripping public unions of their collective bargaining rights.

Prosser’s opponent, former prosecutor JoAnne Kloppenburg, has received praise for her politically independent stance. Unfortunately, the intentions of the candidate often mean very little when races can be influenced by political party and interest group spending that’s completely out of their control. In the 2008 race, outside groups out-spent the candidates by almost 11 to 1, a margin which even alarmed the candidates themselves.

No matter how apolitical Kloppenburg remains, the unfolding narrative of the election is already becoming clear. The unions and the political left are promoting Kloppenburg as a weapon against the policies of Governor Scott Walker and the Republican-controlled state legislature. The pretense of nonpartisan elections has never been less accurate. Whatever your political views, the judiciary is diminished whenever a judicial contest is decided not on the qualifications and ability of the judges in question, but by political expedience and campaign spending.